{ "id": 5511860, "name": "Lewis Wald v. Pittsburg, Cincinnati, Chicago and St. Louis R. R. Co.", "name_abbreviation": "Wald v. Pittsburg, Cincinnati, Chicago & St. Louis R. R. Co.", "decision_date": "1896-06-13", "docket_number": "", "first_page": "545", "last_page": "557", "citations": [ { "type": "official", "cite": "162 Ill. 545" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 Pa. St. 343", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 829770 ], "opinion_index": -1, "case_paths": [ "/pa/147/0343-01" ] }, { "cite": "143 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3080239 ], "opinion_index": -1, "case_paths": [ "/ill/143/0321-01" ] }, { "cite": "74 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2704621 ], "weight": 2, "pin_cites": [ { "page": "260" } ], "opinion_index": -1, "case_paths": [ "/ill/74/0197-01" ] }, { "cite": "68 N. Y. 459", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 529025 ], "opinion_index": -1, "case_paths": [ "/ny/68/0459-01" ] }, { "cite": "74 N. Y. 116", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 534693 ], "opinion_index": -1, "case_paths": [ "/ny/74/0116-01" ] }, { "cite": "83 Pa. St. 316", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1050778 ], "opinion_index": -1, "case_paths": [ "/pa/83/0316-01" ] }, { "cite": "94 Pa. St. 360", "category": "reporters:state", "reporter": "Pa.", "opinion_index": -1 }, { "cite": "106 Mass. 458", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 715870 ], "weight": 2, "pin_cites": [ { "page": "494" } ], "opinion_index": -1, "case_paths": [ "/mass/106/0458-01" ] }, { "cite": "67 Cal. 606", "category": "reporters:state", "reporter": "Cal.", "opinion_index": -1 }, { "cite": "26 Ga. 617", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 267180 ], "opinion_index": -1, "case_paths": [ "/ga/26/0617-01" ] }, { "cite": "1 Conn. 487", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 12130877 ], "opinion_index": -1, "case_paths": [ "/conn/1/0487-01" ] }, { "cite": "57 Tenn. 256", "category": "reporters:state", "reporter": "Tenn.", "opinion_index": -1 }, { "cite": "60 Mo. 199", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 946201 ], "opinion_index": -1, "case_paths": [ "/mo/60/0199-01" ] }, { "cite": "48 N. H. 455", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 1050233 ], "opinion_index": -1, "case_paths": [ "/nh/48/0455-01" ] }, { "cite": "18 W. Va. 61", "category": "reporters:state", "reporter": "W. Va.", "opinion_index": -1 }, { "cite": "3 Lans. 265", "category": "reporters:state", "reporter": "Lans.", "case_ids": [ 4826571 ], "opinion_index": -1, "case_paths": [ "/lans/3/0265-01" ] }, { "cite": "30 N. Y. 564", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2040652 ], "weight": 2, "pin_cites": [ { "page": "630" } ], "opinion_index": -1, "case_paths": [ "/ny/30/0564-01" ] }, { "cite": "80 Ill. 324", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681085 ], "opinion_index": -1, "case_paths": [ "/ill/80/0324-01" ] }, { "cite": "24 N. J. L. 697", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 406386 ], "opinion_index": -1, "case_paths": [ "/njl/24/0697-01" ] }, { "cite": "31 Ala. 667", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8498684 ], "opinion_index": -1, "case_paths": [ "/ala/31/0667-01" ] }, { "cite": "69 Ill. 285", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2635372 ], "opinion_index": -1, "case_paths": [ "/ill/69/0285-01" ] }, { "cite": "35 Cal. 416", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2305384 ], "opinion_index": -1, "case_paths": [ "/cal/35/0416-01" ] }, { "cite": "73 N. Y. 167", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2169825 ], "opinion_index": -1, "case_paths": [ "/ny/73/0167-01" ] }, { "cite": "56 Me. 60", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 667068 ], "opinion_index": -1, "case_paths": [ "/me/56/0060-01" ] }, { "cite": "60 Ill. App. 460", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5155368 ], "opinion_index": -1, "case_paths": [ "/ill-app/60/0460-01" ] }, { "cite": "23 Ohio St. 523", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 421521 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ohio-st/23/0523-01" ] }, { "cite": "6 Ind. App. 304", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 4720373 ], "opinion_index": 0, "case_paths": [ "/ind-app/6/0304-01" ] }, { "cite": "20 Pa. St. 171", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 972341 ], "opinion_index": 0, "case_paths": [ "/pa/20/0171-01" ] }, { "cite": "13 Gray, 481", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2087831 ], "opinion_index": 0, "case_paths": [ "/mass/79/0481-01" ] }, { "cite": "12 Conn. 410", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6753067 ], "opinion_index": 0, "case_paths": [ "/conn/12/0410-01" ] }, { "cite": "18 W. Va. 361", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8640923 ], "opinion_index": 0, "case_paths": [ "/w-va/18/0361-01" ] }, { "cite": "43 Mo. 421", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 952625 ], "opinion_index": 0, "case_paths": [ "/mo/43/0421-01" ] }, { "cite": "147 Pa. St. 343", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 829770 ], "opinion_index": 0, "case_paths": [ "/pa/147/0343-01" ] }, { "cite": "94 Pa. St. 360", "category": "reporters:state", "reporter": "Pa.", "opinion_index": 0 }, { "cite": "106 Mass. 458", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 715870 ], "weight": 2, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/mass/106/0458-01" ] }, { "cite": "67 Cal. 606", "category": "reporters:state", "reporter": "Cal.", "opinion_index": 0 }, { "cite": "1 Conn. 487", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 12130877 ], "opinion_index": 0, "case_paths": [ "/conn/1/0487-01" ] }, { "cite": "60 Mo. 199", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 946201 ], "opinion_index": 0, "case_paths": [ "/mo/60/0199-01" ] }, { "cite": "48 N. H. 455", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 1050233 ], "opinion_index": 0, "case_paths": [ "/nh/48/0455-01" ] }, { "cite": "30 N. Y. 564", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2040652 ], "weight": 2, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/ny/30/0564-01" ] }, { "cite": "80 Ill. 324", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681085 ], "opinion_index": 0, "case_paths": [ "/ill/80/0324-01" ] }, { "cite": "73 N. Y. 167", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2169825 ], "opinion_index": 0, "case_paths": [ "/ny/73/0167-01" ] }, { "cite": "56 Me. 60", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 667068 ], "opinion_index": 0, "case_paths": [ "/me/56/0060-01" ] } ], "analysis": { "cardinality": 989, "char_count": 24854, "ocr_confidence": 0.584, "pagerank": { "raw": 8.237530053892581e-07, "percentile": 0.9749388863983962 }, "sha256": "f4d4e7a4ef8c083ec91988df62d61457d62ab98fb4ee38cfd9d94a5131ca96ca", "simhash": "1:73653de28c3f1d42", "word_count": 4426 }, "last_updated": "2023-07-14T19:15:46.302756+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lewis Wald v. Pittsburg, Cincinnati, Chicago and St. Louis R. R. Co." ], "opinions": [ { "text": "Mr. Chief Justice Magruder\ndelivered the opinion of the court:\nAppellee\u2019s contention is, that the flood, by reason of which appellant\u2019s baggage was lost, was an act of God; and that it is not liable for such loss under the well established rule, that \u201ca common carrier, liable as an insurer for the property intrusted to him for the purpose of transportation, is, nevertheless, excused from responsibility for losses which are caused by an act of God.\u201d (1 Am. & Eng. Ency. of Law,\u20142d ed.\u2014p. 592).\nIt is appellant\u2019s contention, that the railroad company should, by placing a white tag on his trunk at Cincinnati, or by some other means, have provided that it should travel with him by the same train throughout the journey; that it did not do so; that as a result of its negligence in so failing properly to check his trunk, it was separated from him during the journey and was lost; and that, even if this flood was an act of God, yet the appellee\u2019s negligence in failing properly to check the trunk concurred with the act of God, and thereby made appellee liable for the resulting loss or damage.\nFirst\u2014The \u201cJohnstown flood,\u201d as it is called, by reason of which appellant\u2019s baggage was lost, was an act of God. In Long v. Pennsylvania Railroad Co. 147 Pa. St. 343, which was an action brought to recover the value of two trunks and their contents delivered to the Pennsylvania Railroad Company in Cincinnati for transportation to Washington, and where it appears, that the trunks lost were contained in the baggage car of the- day express which was destroyed by the Johnstown flood, so called, on May 31,1889, the Supreme Court of Pennsylvania held, upon substantially the same evidence which is found in the record in the case at bar, that said flood was \u201can inevitable accident, properly described as actus dei.\u201d In the Long case, however, there was no question as to whether or not the goods lost were upon the right train; that is to say, the point was not there made, that the personal baggage of the passenger had been shipped upon a different train from that on which the passenger himself took passage.\nSecond\u2014There is some conflict among the authorities as to the liability of a common carrier where the loss of goods in its or his possession is due, not solely and only to an act of God, but to an act of God combined with the negligence of the carrier. Many cases hold, and such seems to be the tendency of the decisions in this State, that a common carrier is not exempt from liability for a loss which takes place because of an act of God, if such carrier has been guilty of any previous negligence or misconduct which brings the property in contact with the destructive force of the actus dei, or unnecessarily exposes it thereto. A loss or injury is due to the act of God, when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight; and where property, committed to a common carrier, is brought by the negligence of the carrier under the operation of natural causes that work its destruction, or is, by the negligence of the carrier, exposed to such cause of loss, the carrier is responsible. \u201cIt is universally agreed, that, if the damage is caused by the concurring force of the defendant\u2019s negligence and some other cause for which he is not responsible, including the act of God, * * * the defendant is nevertheless responsible if his negligencfe is one of the proximate causes of the damage.\u201d (1 Shearman & Eedfield on Negligence,\u2014 4th ed.\u2014sec. 39). The doctrine is thus clearly stated by the Supreme Court of Missouri in Wolf v. American Express Co. 43 Mo. 421: \u201cThe act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused' by the act of God, if the negligence of the carrier mingles with it as an active and co-operative cause, he is still responsible.\u201d\nIn line with this principle many authorities hold, that, where the unnecessary delay of the carrier subjects the goods in his possession to a loss by an act of God which they would not otherwise have met with, the delay is of itself such negligence as will make him liable for the loss. (Michigan Central Railroad Co. v. Curtis, 80 Ill. 324; Michaels v. New York Central Railroad Co. 30 N. Y. 564; Read v. Spaulding, id. 630; McGrawv. Baltimore and Ohio Railroad Co. 18 W. Va. 361; Deming v. Grand Trunk Railroad Co. 48 N. H. 455; Read v. St. Louis, Kansas City and Northern Railroad Co. 60 Mo. 199; Williams v. Grant, 1 Conn. 487; Davis v. Garrett, 19 Eng. C. L. (6 Bing.) 716; Crosby v. Fitch, 12 Conn. 410; Rodgers v. Central Pacific Railroad Co. 67 Cal. 606; Salisbury v. Herchenroder, 106 Mass. 458; Higgins v. Dewey, 107 id. 494; Philadelphia and Reading Railroad Co. v. Anderson, 94 Pa. St. 360; Baltimore and Ohio Railroad Co. v. School District, 96 id. 65). We are inclined to think that this is the correct doctrine. There are cases which hold to the contrary\u2014among which are the leading cases of Denny v. New York Central Railroad Co. 13 Gray, 481, and Morrison v. Davis, 20 Pa. St. 171\u2014upon the ground that such delay, whether justifiable or not, should not be regarded as the proximate, but only as the remote cause of the loss. It will be found, however, upon examination, that most of these cases are cases where mere delay without other negligence brings the property lost within the operation of the natural cause defined to be an act of God. (1 Am. & Eng. Ency. of Law,\u20142d ed.\u2014p. 596).\nIn the case at bar, when the appellant bought his tickets for a passage upon the limited express train and applied to have his baggage checked, there was an implied undertaking on the part of appellee that his baggage should go on the same train on which he took passage; and appellee was bound to send his baggage on the same train on which he went, unless the appellant gave some direction, or did something, or omitted to do something, which authorized appellee to send his baggage by some other train. \u201cThe implied undertaking of the passenger carrier as to transporting baggage is, that passenger and baggage shall go together; since all baggage is taken with reference to the wants of a particular journey. * * * Nor ought the carrier, without permission, to send the baggage by later trains or a different route, unless in a strong case of necessity. We need hardly add, that, if, through the carrier\u2019s own action, passenger and baggage become separated, the carrier bears the risk.\u201d (Schouler on Bailment and Car.-\u2014-2d ed. \u2014sec. 675; Wilson v. Grand Trunk Railroad Co. 56 Me. 60; Fairfax v. New York Central and Hudson River Railroad Co. 73 N. Y. 167; Toledo, St. Louis and Kansas City Railroad Co. v. Tapp, 6 Ind. App. 304).\nIt was a question of fact in this case, whether or not appellee was guilty of a violation of its implied undertaking or contract to send the baggage on the same train with appellant; in other words, whether or not appellee was guilty of negligence in not taking proper steps to have the baggage carried by the train on which appellant traveled, and to have it so carried throughout the whole length of the journey; or whether the failure to have the baggage transferred to the baggage car of the limited express train at Pittsburg was in any way the fault of the appellant. We think that the court erred in not submitting this question of fact to the jury, and in directing a verdict for the defendant without permitting the jury to pass upon such question.\nIf appellant\u2019s trunk had been transferred at Pitts-burg to the baggage car attached to the limited express train from Chicago, as was done with the sleeping car in which appellant was traveling, the trunk would have passed throug'h the place of danger before the flood occurred, and would not have been destroyed or lost by reason of the flood. If the appellee was guilty of negligence in failing to put the trunk upon the right train\u2014-upon the train where its implied contract with appellant required it to put the trunk\u2014it was guilty of negligence which brought the trunk in direct contact with the force known as an act of God. \u201cIf the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury.\u201d (Shearman & Redfield on Negligence,\u2014 4th ed.\u2014sec. 39). But, here, it cannot be said, that the flood would have caused the loss if the trunk had been transferred to the limited express train at Pittsburg.\nIt is said, however, that the contract of transportation was made at Cincinnati, Ohio; that such a contract and the liabilities of the parties under it are governed by the law of .the place where the contract was made; that the contract to transport appellant\u2019s trunk, having been made in Ohio, must be governed by the law of Ohio; that, by the law of that State, loss of goods in the possession of a common carrier occurring by reason of an act of God, even though such loss would not have been met with but for unnecessary delay on the part of the carrier, relieves the carrier of liability for the loss; and that the case of Daniels v. Ballentine, 23 Ohio St. 523, which was introduced in evidence, shows what the law of Ohio is upon this subject. If the doctrine of lex loci contractus is applicable to this case, and if the case referred to is the law of Ohio, we do not think that the contention set up can be maintained, because the doctrine of the Daniels case is not applicable here.\nIn that case, the action was brought to recover the Value of a barge, which defendants contracted to tow by means of a steam tug from Bay City, Michigan, to Buffalo, New York, and which was lost in a storm on Lake Brie. It appears, that, after the voyage was begun, the defendants delayed on the route three days, and then began the voyage again, and, while on such delayed voyage, the barge and tug were overtaken by. the storm and lost. The court expressly states, that the defendants in that case were not common carriers, and that, although they had such control of the barge as was necessary to enable them to move it, yet the plaintiffs had possession of it, \u201cand for most purposes it remained in their custody and care.\u201d The case, however, presents an instance of mere delay without other negligence. If, in the case at bar, the trunk had been placed upon the right train, and that train had been delayed on the way, and by reason of such delay, had come in contact with the flood, then perhaps there would be a resemblance between this case and the Ohio case. But, here, the delay did not result simply from a halting, or stoppage, in the movement of a train which was carrying the trunk in pursuance of the contract of carriage, but it resulted from negligence in failing to keep an implied contract to carry the trunk upon a particular train, and in violating that contract by carrying the trunk upon a different train from the one agreed upon, that is, upon the assumption that the facts would show no excuse for not keeping the contract. It is like a deviation from the usual course by the master of a vessel, during which a cargo is injured by a storm at sea; in such case the deviation is regarded as a sufficiently proximate cause of the loss to entitle the freighter to recover, as it brings the vessel in contact with the storm, in itself the act of God. (Davis v. Garrett, 6 Bing. 716; 19 Eng. C. L. 212). Here was a deviation from the contract by the use of one agency of transportation not agreed upon, instead of the use of another agency of transportation which was agreed upon, thereby bringing the property in transit in contact with the flood, in itself the act of God. In Davis v. Garrett, supra, it was urged that there was no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself, \u201cfor that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course,\u201d but the court held the objection untenable, and Tindal, C. J., there said: \u201cThe same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable.\u201d\nThe language last quoted is precisely applicable to the case at bar, which is not a case of delay in the transportation of goods being carried by the right conveyance, as in Daniels v. Ballentine, supra, but a case of neglect in forwarding a trunk by the wrong conveyance, to-wit: by the day express, instead of the limited express. Of course, in all that is here said, it is not intended to express any opinion as to whether the failure to ship the trunk by the right train at Pittsburg was or was not the fault of the appellee in view of the conflict in the testimony as to \u25a0the circumstances attending the checking and shipment of the trunk. But, if there was nothing in such circumstances which excuses appellee from its implied obligation to ship the trunk from Pittsburg upon the train carrying appellant eastward from that point, then we think that the property was unnecessarily exposed to the destructive power of the flood in question through the previous negligence or misconduct of appellee, and, consequently, that appellee is not excused. (Williams v. Grant, 16 Gonn. 487.) Hence, the case should have been allowed to go to the jury under the instructions asked by appellant upon this question.\nFor the reason thus indicated, the judgments of the Appellate Court and of the Superior Court of Cook county are reversed, and the cause is remanded to said Superior Court for further proceedings in accordance with the views herein expressed.\nReversed and remanded", "type": "majority", "author": "Mr. Chief Justice Magruder" } ], "attorneys": [ "Burnham & Baldwin, for appellant:", "George Willard, for appellee:" ], "corrections": "", "head_matter": "Lewis Wald v. Pittsburg, Cincinnati, Chicago and St. Louis R. R. Co.\nFiled at Ottawa June 13, 1896\nRehearing denied October 13, 1896.\n1. Act op God\u2014an unprecedented flood is an act of God. An unprecedented flood, by reason of which the baggage of a passenger is swept away, is an act of God.\n2. Same\u2014when loss is due to act of Bod. A loss or injury is due to the act of God where it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight.\n3. Carriers \u2014aci of Bod does not exempt carrier0 where negligence contributes to the loss. A common carrier is not exempt from liability for a loss occasioned by an act of God, if the carrier has been guilty of any previous negligence which brings the property in contact with the destructive force or unnecessarily exposes it thereto.\n4. Same\u2014responsibility where act of carrier exposes property to the cause of loss. A carrier is responsible where property committed to it is by its negligence brought under the operation of natural causes that work its destruction, or is exposed to such cause of loss.\n5. Same\u2014liable for loss by act of Bod where promptness would have avoided it. Unnecessary delay of a carrier which subjects the goods in its possession to a loss by an act of God which they would not otherwise have met with, is of itself such negligence as will make the carrier liable for the loss.\n6. Same\u2014duty of railway company to send baggage on same train with passenger. A railway company impliedly undertakes that the baggage of a passenger upon a limited express train shall go upon the same train on which he takes passage, unless he gives some direction, does something or omits to do something which authorizes the carrier to send the baggage by another train.\n7. Same\u2014destruction of baggage shipped by later train\u2014liability for loss. A carrier which, without sufficient reason, fails to ship the trunk of a passenger upon the limited train taken by such passenger, is liable for its destruction by a flood which comes upon the later train on which it is shipped, though such flood is in itself an act of God.\n8. Trial\u2014question of negligence in separating baggage from passenger is for the jury. It is a question of fact for the jury whether or not a railroad company is guilty of negligence in not sending a passenger\u2019s baggage by the train on which he travels, and having it so carried throughout the journey.\nWald v. P., C., C. & St. L. R. R. Co. 60 Ill. App. 460, reversed.\nAppeal from the Appellate Court for the First District;\u2014-heard in that court on appeal from the Superior Court of Cook county; the Hon. Arthur Chetlain, Judge, presiding.\n. This was a suit by appellant, against appellee, .to recover the value of appellant\u2019s trunk and its contents, lost while in the possession of appellee as a common carrier, between Cincinnati, Ohio, and New York City. On May 30, 1889, the. plaintiff bought a ticket at Cincinnati for passage by the so-called \u201climited express train\u201d over defendant\u2019s road, to New York City. The limited express was a fast train, arriving in New York City two hours sooner than the regular day express. The tickets for this limited train consisted of two printed slips, one, the railroad ticket, being green, the other, the special limited sleeping-car ticket, being purple. No passenger could travel by the limited without having both of these tickets. It was necessary to present these tickets at Cincinnati to some agent of the railroad company in order to have a trunk checked to New York. Plaintiff did so present his tickets and had his trunk checked at Cincinnati for New York. From Cincinnati to Pittsburg passengers and their baggage, for both the limited and day express, traveled on the same train. \u2022 This was the case with plaintiff and his baggage. Both left Cincinnati at the same time. At Pittsburg the Cincinnati sleeper, carrying passengers for the limited train, was attached to the regular limited express which had come from Chicago, and the Cincinnati baggage for the limited train was transferred at Pittsburg from the baggage car of the Cincinnati express to the baggage car of the limited train. In order to have baggage intended for the limited express so transferred at Pittsburg, it was the practice of the railroad company to attach to each trunk at Cincinnati a white pasteboard tag in addition to the regular brass check, and unless such a white tag had been so attached a trunk remained on the baggage car from Cincinnati and went through by the day express from Pittsburg to New York. In the present case no such white tag had been attached to plaintiff\u2019s trunk at Cincinnati, and as.a result, while plaintiff\u2019s car was transferred at Pittsburg to the limited express his trunk remained on the day express, which followed along some time after the limited. This day express carrying plaintiff\u2019s baggage was overtaken by a flood at Johnstown, Pennsylvania, and the baggage car with the entire contents, including plaintiff\u2019s trunk, was lost. The limited express on which plaintiff traveled passed beyond the point of danger before the flood came, and was uninjured.\nThere was some conflict in the testimony as to whether or not it was defendant\u2019s fault, that the white tag was not placed on plaintiff\u2019s trunk at Cincinnati.\nIt is agreed, \u201cthat there was no negligence in the management of the train, or in the care of the baggage in question while on the train.\u201d\nOn the trial of the case before a jury, at the close of all the evidence the court instructed the jury, as requested by defendant, that plaintiff was not entitled to recover, and that a verdict should be returned for defendant. On the verdict so returned judgment was entered, and this judgment was affirmed by the Appellate Court. The case is brought to this court under a certificate of importance.\nIn their opinion deciding this case the Appellate Court thus describe the flood which destroyed the baggage car containing appellant\u2019s trunk, as such description appears from the testimony to be found in the record: \u201cThe flood that was encountered far exceeded what had ever before been known in the region where it occurred. There was a great fall of rain, lasting many hours, which raised the river to a height never before known, and caused wash-outs and land-slides to an extent necessitating the train carrying the trunk to come to a stand. As the stream rose the train was shifted from place to place to keep it in safety, and because of wash-outs ahead and behind it could not proceed far either in the direction of returning or advancing. After remaining in this position for several hours the South Pork dam, which was located on a tributary stream a few miles above where the train stood, and formed a reservoir there at a very much greater elevation, broke, and let into the narrow valley what witnesses described as a great wall or wave of water from twenty to thirty feet high. Of course everything was swept before it. Trees, houses, railroad tracks, cars and engines, iron bridges and stone viaducts, were carried before its force, and so complete was the devastation wrought, it was testified in the case that it co'st the railroad company $600,000 to put its road-bed, tracks and bridges, within a distance approximating seven miles, in the condition they were in before the flood. Only those persons who were on the alert and on the hillsides escaped death. The engineer of the locomotive to the train in question escaped only by fleeing up the hillside. His locomotive was turned over, and the baggage car, which was coupled to it and in which plaintiff\u2019s trunk was being carried, was swept away, and it was testified that the car was never after-wards found in recognizable form.\u201d\nBurnham & Baldwin, for appellant:\nThe implied undertaking is that passenger and baggage shall travel together on the same train throughout the journey, and if the passenger and his trunk become separated and the trunk is lost, the carrier is liable. Schouler on Bailments, (2d ed.) pars. 672, 675; Wilson v. Railway Co. 56 Me. 60; Fairfax v. Railroad Co. 73 N. Y. 167.\nThe flood in which plaintiff\u2019s trunk was lost was not entirely free from human intervention, and was therefore not an act of God. Polack v. Pioche, 35 Cal. 416; Railroad Co. v. Sawyer, 69 Ill. 285; Merchants' Dispatch Co. v. Smith, 76 id. 542; Steele v. McTyers, 31 Ala. 667; Transportation Co. v. Tiers, 24 N. J. L. 697.\nWhere the negligence of a carrier concurs with an act of God, and is one of the causes, in a direct sequence, producing the loss, the carrier is liable. Railroad Co. v. Curtis, 80 Ill. 324; Michaels v. Railroad Co. 30 N. Y. 564; Read v. Spaulding, 30 id. 630; Condict v. Railroad Co. 54 id. 500; Bostwick v. Railroad Co. 45 id. 712; Dunson v. Railroad Co. 3 Lans. 265; McGraw v. Railroad Co. 18 W. Va. 61; Deming v. Railroad Co. 48 N. H. 455; Read v. Railroad Co. 60 Mo. 199; Pruitt v. Railroad Co. 62 id. 527; Wolf v. Express Co. 43 id. 421; Express Co. v. Womack, 57 Tenn. 256; Williams v. Grant, 1 Conn. 487; Crosby v. Fitch, 12 id. 410; Davis v. Garrett, 19 E. C. L. 716; Shearman & Redfield on Negligence, (4th ed.) par. 39; Phillips v. Brigham, 26 Ga. 617; Rodgers v. Railroad Co. 67 Cal. 606; Salisbury v. Herchenroder, 106 Mass. 458; Higgins v. Dewey, 107 id. 494; Railroad Co. v. Anderson, 94 Pa. St. 360; Railroad Co. v. School District, 96 id. 65.\nA contract to carry passenger and baggage is to be construed according to the place of complete performance, which is at the end of the journey. Story on Conflict of Laws, par. 233; Wharton on Conflict of Laws, sec. 401; Brown v. Railroad Co. 83 Pa. St. 316; Curtis v. Railroad Co. 74 N. Y. 116; Brown v. Railway Co. 4 Manitoba, 396.\nGeorge Willard, for appellee:\nMotions by each party to direct a verdict are sufficient, in the absence of some clear expression to the contrary, to warrant an inference that a submission of the cause to the court was intended. New York Code, 1889, sec. 1009; Trustees v. Kirk, 68 N. Y. 459; Bradley v. South P. Co. 14 id. 917; Baird v. Mayor, 74 id. 382; Koehler v. Adler, 78 id. 287; Bank v. Dana, 79 id. 108; Hand v. Kennedy, 83 id. 149.\nThe general proposition of law submitted was in conflict with the following authorities: Railroad Co. v. Smith, 74 Ill. 197; Pennsylvania Co. v. Fairchild, 69 id. 260; Burchard v. Dunbar, 82 id. 450; Merchants\u2019 Despatch Co. v. Furthman, 149 id. 66; Railroad Co. v. Boyd, 91 id. 268.\nPlaintiff\u2019s written request that the court find specially whether the defendant was negligent in the care of the baggage before it was put on the train at Cincinnati was properly refused. It involved a question of fact, and therefore was unauthorised under the rules of practice in this State. County of La Salle v. Milligan, 143 Ill. 321; Field v. Crawford, 146 id. 136.\nThe loss was occasioned by vis major, to foresee or to guard against which defendant was not negligent, and consequently not liable for damages, nominal or otherwise. Long v. Railroad Co. 147 Pa. St. 343." }, "file_name": "0545-01", "first_page_order": 545, "last_page_order": 557 }